Citation Nr: 0103848
Decision Date: 02/07/01 Archive Date: 03/12/01
DOCKET NO. 96-00 331 DATE FEB 07, 2001
On appeal from the Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for a low back disorder including as
secondary to service-connected bilateral knee reconstructions.
REPRESENTATION
Veteran represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Maureen A. Young, Associate Counsel
INTRODUCTION
The veteran had active military service intermittently from April 1986 to
June 1995.
The current appeal arose from a September 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
The RO, in pertinent part, denied entitlement to service connection for a
lumbosacral spine disability. As a result of the veteran's relocation, the
jurisdiction of his claim for VA compensation benefits has been assumed by
the RO in Houston, Texas.
In November 1997 the Board of Veterans' Appeals (Board) remanded the case to
the RO for further development and adjudicative action. In April 1998 the RO
affirmed the denial of entitlement to service connection for residuals of a
low back injury.
The case was again remanded to the RO for further development and
adjudicative action in September 1998. In September 1999 the RO affirmed the
denial of entitlement to service connection for residuals of a low back
injury.
The veteran provided testimony at a video conference before the undersigned
Member of the Board at the RO in March 2000, a transcript of which has been
associated with the claims file.
In August 2000 the Board remanded the case to the RO for further development
and adjudicative action. In November 2000 the RO affirmed the denial of
entitlement to service connection for residuals of a low back injury.
The case has been returned to the Board for further appellate consideration.
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FINDINGS OF FACT
1. An identifiable chronic acquired low back disorder was not shown in active
service.
2. An identifiable chronic acquired low back disorder is not shown post
service.
3. A chronic acquired low back disorder which is causally related to service-
connected residuals of bilateral knee reconstruction is not shown by the
evidence of record.
CONCLUSION OF LAW
A chronic acquired low back disorder was not incurred in or aggravated by
active service, nor is one proximately due to or the result of a service-
connected disability. 38 U.S.C.A. 1110, 1131 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 4, 114 Stat. 2096, 2098-99
(2000) (to be codified as amended at 38 U.S.C. 5107); 38 C.F.R. 3.102, 3.303,
3.310(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records show that in October 1986, the veteran complained of
mid back pain while lifting weights, but on examination, clinical findings
were normal. The diagnosis was muscle pull. However, medical reports later
that month and in November 1986, indicate that the lower back pain had
improved as objective findings were normal, and a diagnosis of resolving back
strain was made.
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The records also show that on February and August 1993 examination reports,
no abnormal findings were shown and on the Report of Medical History, the
veteran denied experiencing recurrent low back pain.
The veteran's service medical records also consist of a January 1995 Report
from the Medical Board which documents complaints of low back pain with
occasional radiation into bilateral buttocks, but not the lower extremities.
He also stated that he participated in physical therapy, received
nonsteroidals, and used a transcutaneous electrical nerve stimulating (TENS)
unit with some improvement.
Examination at that time showed flexion to 90 degrees, straight leg raising
to 90 degrees, bilaterally, and normal distal motor and sensory findings. The
diagnosis was mechanical low back pain. Reports thereafter also show that in
March 1995, the veteran complained of low back pain since his knee surgeries
in 1993 and 1994. The assessment was low back pain secondary to knee
surgeries. Later in March 1995, he was diagnosed with chronic mechanical back
pain. In April 1995, a .n diagnosis of mechanical back pain improving was
made.
On VA examination in July 1995 the veteran stated that after prolonged
walking or sitting, heavy lifting, or during cold weather, he experienced a
sharp pain of the lumbosacral spine. He described the pain as radiating up
into the mid-thoracic spine, and down the posterior aspect of the thighs to
the mid-thigh level. The pain did not radiate from the back to below the
knee.
However, the veteran denied experiencing radicular type paresthesia of the
lower extremity, nocturnal pain, or urinary or fecal incontinence. In the
report, the examiner added that according to the veteran, since separation
from service, he had not engaged in vigorous activities, and he seemed to be
getting progressively better, as he experienced fewer and fewer episodes of
low back pain. Objective evaluation revealed essentially normal findings and
a report of an x-ray study showed normal findings. The diagnosis was pain of
the lumbosacral spine-etiology undetermined.
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A medical report from the veteran's chiropractor in December 1996 indicates
the veteran's history of pain in his low back with some radiating leg pain
and numbness to the legs. X-rays revealed no fractures, dislocations,
malformations, or gross osseous pathology. Structural evaluation revealed
mild degenerative changes. Lumbar ranges of motion were within normal limits.
The diagnoses were lumbosacral segmental dysfunction and low back pain.
X-rays of the lumbar spine taken in November 1998 revealed findings within
normal limits. Progress notes from the MacGregor Medical Association in
December 1998 disclosed the veteran's opinion that his low back pain resulted
from his bilateral knee surgeries. On examination, there was normal range of
motion of the lumbar spine. The diagnosis, in pertinent part, was chronic low
back pain.
On VA examination of the spine in August 1999 the veteran disclosed that he
had, begun to develop some mechanical low back pain after hi,s first and
second knee surgeries. He stated that he was told that his back condition was
a result of his altered walking while his recovery was progressing. He
further stated that he saw a chiropractor intermittently for bilateral lower
lumbar pain. He denied any radicular. symptoms.
X-rays of the lumbar spine showed transitional vertebral with six lumbar
segments and no significant abnormality. He was diagnosed with low back pain.
The examiner noted that in his medical opinion, there is no etiological
relationship between the veteran's low back disorder and his service-
connected bilateral knee conditions.
In a September 1999 addendum to the August 1999 VA examination, the examiner
noted that he reviewed the board certified orthopedic surgeon's dictation of
the August 1999 examination. The examiner further noted that clinical
findings on the veteran's lower back were normal and x-rays were
unremarkable.
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The examiner further noted that he had discussed the veteran's case with the
previous examiner in order to clarify the question of relationship between
lower back pain and bilateral knee reconstruction. He stated that there is no
medical literature supporting the opinion of a relationship between a knee
condition and lower back pain; nor is there a proven relationship between
knee injuries and low back pain.
At his video conference hearing in March 2000, the veteran testified that he
exercises and take aspirin, Motrin or Advil as treatment for his low back
disorder. Hearing Transcript (Tr.), pp. 2-3. He stated that he works
installing cable and the work he performs does not put a strain on his back.
Tr., pp. 3-4. He further stated that a chiropractor expressed an opinion that
his (the veteran's) low back condition was related to his knee disorder. Tr.,
pp. 6-7.
Service connection has been granted for residuals of a right knee
reconstruction, evaluated as 10 percent disabling; residuals of a left knee
reconstruction, evaluated as 10 percent disabling; and residuals of striping
varicose veins, evaluated as noncompensable. The combined schedular
evaluation is 20 percent (Bilateral factor considered).
Criteria
Except as otherwise provided, a veteran has the responsibility to present and
support a claim for benefits under laws administered by the Secretary.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 4, 114 Stat.
2096, (2000) (to be codified as amended at 38 U.S.C. 5107).
Upon receipt of a complete or substantially complete application, the
Secretary shall notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate the claim.
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As part of that notice, the Secretary shall indicate which portion of that
information and evidence, if any, is to be provided by the claimant and which
portion, if any, the Secretary, in accordance with section 5103A of this
title and any other applicable provisions of law, will attempt to obtain on
behalf of the claimant. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 3(a), 114 Stat. 2096, (2000) (to be codified at 38 U.S.C.A.
5103(a)).
If a claimant's application for a benefit administered by the laws of the
Secretary is incomplete, the Secretary shall notify the claimant and the
claimant's representative, if any, of the information necessary to complete
the application. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
3(a), 114 Stat. 2096, (2000) (to be codified at 38 U.S.C.A. 5102(b)).
The Secretary shall make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the claimant's claim for a benefit under
a law administered by the Secretary, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
The law further provides that the Secretary may defer providing assistance
pending the submission by the claimant of essential information missing from
the application. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
3(a), 114 Stat. 2096, (2000) (to be codified at 38 U.S.C.A. 5103A(a)(1)-(3)).
As part of the assistance provided above, the Secretary shall make reasonable
efforts to obtain relevant records (including private records) that the
claimant adequately identifies to the Secretary and authorizes the Secretary
to obtain.
Whenever the Secretary, after making such reasonable efforts, is unable to
obtain all of the relevant records sought, the Secretary shall notify the
claimant that it is unable to obtain records with respect to the claim.
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Such a notification shall (A) identify the records the Secretary is unable to
obtain; (B) briefly explain the efforts that the Secretary made to obtain
those records; and (C) describe any further action to be taken by the
Secretary with respect to the claim.
Whenever the Secretary attempts to obtain records from a Federal department
or agency under this subsection or subsection (c), the efforts to obtain
those records shall continue until the records are obtained unless it is
reasonably certain that such records do not exist or that further efforts to
obtain those records would be futile. Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 3(a), 114 Stat. 2096, (2000) (to be codified at 38
U.S.C.A. 5103A(b)(1)-(3)).
In the case of a claim for disability compensation, the assistance provided
by the Secretary under subsection (b) shall include obtaining the following
records if relevant to the claim:
(1) The claimant's service medical records and, if the claimant has furnished
the Secretary information sufficient to locate such records, other relevant
records pertaining to the claimant's active military, naval, or air service
that are held or maintained by a governmental entity.
(2) Records of relevant medical treatment or examination of the claimant at
Department health-care facilities or at the expense of the Department, if the
claimant furnishes information sufficient to locate those records.
(3) Any other relevant records held by any Federal department or agency that
the claimant adequately identifies and authorizes the Secretary to obtain.
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Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 3(a), 114 Stat.
2096, (2000) (to be codified at 38 U.S.C.A. 5103A(c)).
In the case of a claim for disability compensation, the assistance provided
by the Secretary under subsection (a) shall include providing a medical
examination or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
The Secretary shall treat an examination or opinion as being necessary to
make a decision on a claim for purposes of paragraph (1) if the evidence of
record before the Secretary, taking into consideration all information and
lay or medical evidence (including statements of the claimant)--
(A) contains competent evidence that the claimant has a current disability,
or persistent or recurrent symptoms of disability; and
(B) indicates that the disability or symptoms may be associated with the
claimant's active military, naval, or air service; but
(C) does not contain sufficient medical evidence for the Secretary to make a
decision on the claim.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 3(a), 114 Stat.
2096, (2000) (to be codified at 38 U.S.C.A. 5103A(d)).
In order to establish service connection for a claimed disability the facts
must demonstrate that a disease or injury resulting in current disability was
incurred in active military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. 1110, 1131(West 1991 & Supp. 2000); 38 C.F.R.
3.303 (2000).
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Service connection may be also granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38 C.F.R. 3.303(d)
(2000).
Where there is a chronic disease shown as such in service or within the
presumptive period under 3.307 so as to permit a finding of service
connection, subsequent manifestations of the same chronic disease at any
later date, however remote, are .service connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. 3.303(b) (2000).
This rule does not mean that any manifestation in service will permit service
connection. To show chronic disease in service there is required a
combination of manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time, as distinguished
from merely isolated findings or a diagnosis including the word "chronic."
When the disease identity is established, there is no requirement of
evidentiary showing of continuity. When the fact of chronicity in service is
not adequately supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. 3.303(b) (2000); see Savage v.
Gober, 10 Vet. App. 488 (1997);
The United States Court of Appeals for Veterans Claims (Court) has held that,
in order to prevail on the issue of service connection, there must be medical
evidence of a (1) current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus between the claimed
in-service disease or injury and the present disease or injury. Hickson v.
West, 12 Vet. App. 247, 253 (1999).
However, continuous service for 90 days or more during a period of war, and
post- service development of a presumptive disease to a degree of 10 percent
within one year from the date of termination of such service, establishes a
rebuttable presumption that the disease was incurred in service. 38 C.F.R.
3.307, 3.309 (2000).
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Service connection may be granted for a disorder which is proximately due to,
the result of, or aggravated by a service-connected disability. 38 C.F.R.
3.310(a) (2000); Allen v. Brown, 7 Vet. App. 439 (1995).
A lay person or persons is competent to provide evidence on the occurrence of
observable symptoms during and following service, such a lay person is not
competent to make a medical diagnosis or render a medical opinion which
relates a medical disorder to a specific cause. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992).
When all the evidence is assembled, VA is responsible for determining whether
the evidence supports the claim or is in relative equipoise, with the
appellant prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Secretary shall consider all information and lay and medical evidence of
record in a case before the Secretary with respect to benefits under laws
administered by the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the benefit of the doubt
to the claimant. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
4, 114 Stat. 2096, (2000) (to be codified at 38 U.S.C.A. 5107).
Analysis
The Board initially notes that the duty to assist has been satisfied in this
instance. After a review of the record it appears that the RO has taken
reasonable efforts to secure all pertinent records identified by the veteran
in this claim, including VA and private medical records.
The Board is satisfied that as a result of the November 1997, September 1998
and August 2000 remands of the case to the RO for further development and
adjudicative actions, all relevant facts have been adequately developed to
the extent possible and that VA has met its duty to assist. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 3(a), 1 14 Stat. 2096, (2000)
(to be codified at 38 U.S.C.A. 5103A).
In that regard, the veteran was afforded VA examinations in July 1995 and
August 1999, and he proffered testimony at a video conference before the
undersigned Member of the Board in March 2000. Moreover, other evidence has
been obtained which is probative thereof. The Board is unaware of any
additional evidence that has not already been requested and/or obtained that
is pertinent to the veteran's appeal.
Congress recently passed the Veterans Claims Assistance Act of 2000, Pub. L.
104- 475, 114 Stat. 2096 (2000), modifying the adjudication of all pending
claims. As set forth above, the new law revises the former 38 U.S.C.A.
5107(a) to eliminate the requirement that a claimant come forward first with
evidence to well ground a claim before the Secretary is obligated to assist
the claimant in developing the facts pertinent to the claim. It also
specifically enumerates the requirement of the duty to assist, as discussed
earlier.
In this case the Board finds that the veteran is not prejudiced by its
consideration of his claim pursuant to this new law without it first being
considered by the RO. As set forth above, VA has already met all obligations
to the veteran under this new law. Moreover, the veteran has been afforded
the opportunity to submit evidence and argument on the merits of the issue on
appeal, and has done so. In view of the foregoing, the Board finds that the
veteran will not be prejudiced by its actions and that a remand for
adjudication by the RO would only serve to further delay resolution of his
claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Having determined that the duty to assist has been satisfied the Board turns
to an evaluation of the veteran's claim on the merits.
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The threshold question that must be answered in this instance, is whether the
evidence establishes that the veteran has a chronic acquired low back
disorder which was incurred coincident with service or developed as secondary
to any of his service-connected disabilities. The Board must respond in the
negative on both bases.
Undoubtedly the service as well as post service medical records are replete
with multiple references to treatment of the veteran for chronic low back
pain; however, neither clinical objective nor radiographic studies have
disclosed an identified chronic acquired low back disorder, the
symptomatology of which has been manifested by pain.
The Court has held that pain per se is not a chronic acquired disability upon
which to predicate a grant of entitlement to service connection. Benitez v.
West, 13 Vet. App. 282 (1999).
The veteran has been afforded numerous examinations and radiographic studies,
and he has not been found to have a chronic acquired low back disorder to
account for his complaints of pain.
Undoubtedly the evidentiary record contains medical opinions in favor and
against the veteran's claim that he has a low back disability; however, the
medical opinions merely recognize back pain with no diagnosis therefor as
secondary to service- connected bilateral knee disability. As the Board noted
earlier, the Court has precluded symptomatic pain in and of itself as
constituting a chronic acquired disorder for VA compensation purposes.
As the Board noted earlier, the Court has held that in order to prevail on
the issue of service connection, there must be medical evidence of a current
disability; medical or in certain circumstances, lay evidence of in service
incurrence or aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in service disease or injury and the present
disease. See Hickson, supra. The veteran is not even shown to have a chronic
acquired identified low back disorder.
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The veteran has consistently contended to the contrary that he does in fact
have a chronic acquired low back disability secondary to his service-
connected bilateral knee disabilities. The veteran is a lay person and not
competent to make a medical diagnosis or render a medical opinion which
relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet.
App. 492, 494-495 (1992). Neither is the Board competent to supplement the
record with its own unsubstantiated medical conclusions as to whether the
veteran has a chronic acquired low back disorder related to service or as
secondary to a service-connected disability.
For the foregoing reasons, the Board finds that the evidentiary record does
not substantiate that the veteran has a chronic acquired low back disorder
which was incurred in or aggravated by active service, nor as secondary to a
service-connected disability.
Although the veteran is entitled to the benefit of the doubt where the
evidence is in approximate balance, the benefit of the doubt doctrine is
inapplicable where, as here, the preponderance of the evidence is against the
claim for service connection for a chronic acquired low back disorder
including as secondary to service- connected bilateral knee reconstructions.
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
ORDER
Entitlement to service connection for a chronic acquired low back including
as secondary to service-connected bilateral knee reconstructions is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
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